The Long Life of Liberal America: Law and State-Building in the U.S. And U.K.
Law and History Review, Forthcoming
20 Pages Posted: 7 Jun 2005
This brief essay compares the law and politics, processes and outcomes of twentieth-century state-building in the U.S. and England. There were conspicuous differences between the New Deal state that was fashioned in 1930s and '40s America and the welfare state England created in those decades. More interestingly, the ideology and institutional contours of this new American state were deeply influenced by the ambivalent and lawyerly brand of American liberalism that animated figures like Charles Evan Hughes and Roscoe Pound - poised between progressive commitments to social reform, social provision, and administrative-state-building, on one hand, and older, classical liberal commitments to limited and decentralized, dual federalist government and the primacy of courts and common law and traditional legal and constitutional niceties, on the other.
The architecture of what we've come to call the New Deal state and of America's system of social provision was not the product of robust New Deal liberalism. If New Dealers had been able to design the state and American public social insurance according to their specifications, its institutions (and their justificatory language) would have looked dramatically different - and far more like England's. We better understand the state that actually emerged in the U.S. as the product of a half-century of conflict and accommodation between the new liberalism of Progressive and New Deal reformers and the old or classical legal liberalism of the Lochner Constitution, and the jurists, lawyers, and politicians who hewed to it. The modern American welfare and regulatory state was not one that any single group intended or envisioned; but it bore the deep imprint of Lochner's diverse defenders and the court- and common law-dominated institutional order they fought to preserve. Small wonder, the essay suggests, that members of the legal elite, such as Hughes and Pound, who combined vast energy, abilities, and ambition with a self-conscious and astute positioning of themselves as mediators between old and new liberalisms, left such durable legacies.
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